29 STAN. L. & POL’Y REV. ONLINE March 12, 2018 THERE’S NOTHING “SUPER” ABOUT ROE V. WADE Orrin G. Hatch* The U.S. Senate Judiciary Committee opened its hearing on the nomination of Neil Gorsuch to be an Associate Justice of the U.S. Supreme Court on March 20, 2017. This Article examines a particular argument made during the hearing about the Supreme Court’s 1973 decision in Roe v. Wade1 and its status as a precedent of the Court. During her opening statement, Ranking Member Dianne Feinstein (D-CA) offered a list of “39 decisions where [Roe] has been reaffirmed by the court.” 2 These decisions, she said, make Roe a “super precedent.”3 This claim is the basis for the argument that Roe v. Wade should be virtually immune from being overruled. After setting the stage by outlining relevant principles of stare decisis, this Article will evaluate the validity of the “super precedent” argument. INTRODUCTION The “super precedent” argument is that Roe v. Wade is virtu- ally immune from being overruled in the future because it has been reaffirmed so many times in the past.4 Senator Arlen Specter (R-PA) * United States Senator (R-Utah). B.A., Brigham Young University (1959); J.D., University of Pittsburgh School of Law (1962). Senator Hatch has served on the Judiciary Committee since February 1977, and chaired the panel during the 104th-106th and 108th Congresses. He thanks Timothy Rodriguez, Caitlin McHale, Christopher Marchese, and Jordan Roberts for their valuable research assistance. 1 Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court held that the Constitution protects a “right of personal privacy,” that is “founded in the Fourteenth Amendment’s concept of personal liberty.” Id. at 152-53. This “right of privacy . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id. at 153. 2 Nomination of the Hon. Neil M. Gorsuch, to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Sen. Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary), https://www.judiciary.senate.gov /imo/media/doc/FeinsteinStatement03-20-2017%20.pdf. 3 Id. 4 The first reference to “super precedent” occurred in a 1976 article analyzing citations to precedents in judicial opinions. William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J. L. & ECON. 1 2 STANFORD LAW & POLICY REVIEW [Vol. 29:4 presented this argument to three Supreme Court nominees before Senator Feinstein raised it in the Gorsuch hearing. On September 13, 2005, when he chaired the Judiciary Committee, Specter began his questions for Supreme Court nominee John Roberts by addressing “the issue of the woman’s right to choose and Roe v. Wade.”5 His goal was to determine whether Roberts would, if confirmed, vote to overrule Roe.6 For as long as Supreme Court nominees have appeared before the Judiciary Committee, however, they have declined to discuss their views about issues that could come before them on the Court. The Judiciary Committee held its first public Supreme Court confirmation hearing in 1916.7 Since then, 36 Supreme Court nominees have at- 249, 251 (1976). The authors defined a “super precedent” as a “precedent that is so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place or, if they do arise, induces them to be settled without litigation.” Id. The Supreme Court has also identified a “superpowered form of stare decisis” that requires “a superspecial justification to warrant reversing” a precedent. Kimble v. Marvel Entertainment, 135 S. Ct. 2401, 2410 (2015). This category, however, is for cases involving statutory construction as well as property or contract rights. Id. The Court has said that “we do not give super-duper protection to decisions that do not actually interpret a statute.” Id. at 2418. The “super precedent” argument under review here does not fit into either of these categories. Rather than focus generally on Roe v. Wade’s precedential effect on future cases, it focuses specifically on the effect of later cases on whether Roe v. Wade remains a precedent at all. Under this argument, whether Roe is a “super precedent” and, therefore, immune from being overruled in the future depends entirely on whether, and how often, it has been reaffirmed in the past. 5 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 141 (2005) (statement of Sen. Arlen Specter, Chairman, S. Comm. on the Judiciary), https://www.judiciary.senate.gov/imo/media/doc/GPO-CHRG- ROBERTS. pdf [hereinafter Roberts Hearing]. 6 In her opening statement during the hearing on Sonia Sotomayor’s Supreme Court nomination in 2009, Senator Feinstein acknowledged that her goal was to determine “how a nominee will actually act as a Supreme Court Justice.” Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong., 15 (2009) (statement of Sen. Dianne Feinstein, Member, S. Comm. on the Judiciary), https://www.gpo.gov/ fdsys/pkg/ CHRG-111shrg56940/pdf/CHRG-111shrg56940.pdf [hereinafter Sotomayor Hearing]. 7 The Nomination of Louis D. Brandeis to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 64th Cong. 1 (1916). The committee did not hold a hearing on the following nominees: John Clarke, nominated in 1916 by President Woodrow Wilson; William Howard 2018] THERE’S NOTHING SUPER 3 tended their hearings, 8 and 34 of them answered questions from committee members.9 Of the 30 who were asked about their views on issues that could come before the Supreme Court,10 29 explicitly de- clined to discuss them.11 Taft (1921), George Sutherland (1922), Pierce Butler (1923), and Edward Sanford (1923), each nominated by President Warren G. Harding; Charles Evans Hughes and Owen Roberts, nominated in 1930 by President Herbert Hoover; Hugo Black (1937), Frank Murphy (1940), James Byrnes (1941), and Wiley Rutledge (1943), nominated by President Franklin D. Roosevelt; Harold Burton, nominated in 1945 by President Harry Truman; Harriet Miers and John Roberts, nominated in 2005 by President George W. Bush to be Associate Justices; and Merrick Garland, nominated in 2016 by President Barack Obama. 8 In addition to Brandeis, the following Supreme Court nominees did not appear at their confirmation hearing: John Parker (1930) and Benjamin Cardozo (1932), nominated by President Herbert Hoover; Harlan Fiske Stone, nominated in 1941 by President Franklin D. Roosevelt to be Chief Justice; Fred Vinson (1946), Tom Clark (1949), and Sherman Minton (1949), nominated by President Harry Truman; and Earl Warren (1953), nominated by President Eisenhower. 9 Stanley Reed (1938) and William O. Douglas (1939), both nominated by President Franklin Roosevelt, attended their Judiciary Committee hearings but did not interact with the committee. See Nomination of Stanley F. Reed: Hearing Before the S. Comm. on the Judiciary, 75th Cong. 1, 26 (1938); Nomination of William O. Douglas, to be an Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 75th Cong. 1 (1939). While Reed’s hearing lasted 55 minutes, Douglas’ “hearing” was over in just five. 10 President Calvin Coolidge nominated then-Attorney General Harlan Fiske Stone to the Supreme Court on January 5, 1925, and the Judiciary Committee approved the nomination without a hearing on January 9. Five days later, however, the nomination was returned to the committee at the insistence of Sen. Thomas Walsh (D-MT). Walsh had served as legal counsel to Senator Burton Wheeler (D-MT), who was indicted in April 1924 for intent to commit fraud. Senator Walsh, a Judiciary Committee member, cited Stone’s December 1924 decision to broaden the Wheeler investigation as the basis for further committee consideration. A hearing on January 28, 1925, focused solely on the Wheeler case and Stone “answered almost five hours of questioning in a polite and straightforward manner.” James A. Thorpe, The Appearance of Supreme Court Nominees Before the Senate Judiciary Committee, 18 J. PUB. L. 371, 373 (1969). The U.S. Senate website’s description of this controversy concludes that Stone’s “masterful performance . cleared the way for his quick confirmation.” https://www.senate.gov/artandhistory/history/minute/Committee_Grills_Nominee.h tm. President Franklin Roosevelt nominated then-Attorney General Robert Jackson to the Supreme Court on June 12, 1941. Senators asked Jackson only about his decision not to prosecute for libel two individuals accused Senator Millard Tydings (D-MD), a Judiciary Committee member, of using government workers to build a road for his estate. See id. at 378. President Eisenhower nominated Charles Whittaker to the Supreme Court on March 2, 1957. Most of the hearing consisted of testimony by, and questions to, a Tennessee attorney whose client had lost a case 4 STANFORD LAW & POLICY REVIEW [Vol. 29:4 Perhaps anticipating that Roberts would take the same ap- proach, Specter began “collaterally”12 by discussing the “principles of stare decisis” 13 that the Supreme Court considers when deciding whether to overrule a precedent. Roberts discussed those principles generally14 but declined to apply them to Roe v. Wade.15 Failing to elicit Roberts’ views about the validity of Roe v. Wade, Specter shift- ed to sharing with Roberts his own views on the subject by discussing “the concept of super-stare decisis.”16 before then-U.S.